~ It's a matter of life and breath

Busti Avenue Demolitions

The Colonel Samuel H. Wilkeson mansion at 77 Busti Avenue. Click here to see more photographs of this weekend’s demolitions on Busti. (photo by Michael Herbold)

The Public Bridge Authority wasted no time getting the eight Busti row houses demolished. Federal Judge Jeremiah J. McCarthy handed down his decision Friday vacating the temporary restraining order on the demolition plan. The bulldozing started early Saturday morning. By Saturday evening all eight houses, including the historic Wilkeson mansion, were rubble.

The land is to be used along with the abandoned Episcopal Church Home land just to the north for expansion of the Peace Bridge Plaza. Or more precisely, for a new and enlarged Duty Free store and parking and access roads for the Duty Free.

The preservationist group Campaign for Buffalo History, Architecture, and Culture had obtained the temporary restraining order and hoped to force the matter to trial and require the PBA to perform a thorough environmental impact study on the project, considering not just the demolition of the houses but the further development of the project. The PBA, which contends, in the first place, that as a bi-national entity it is not subject to New York State environmental regulations, performed a “voluntary and segmented” environmental assessment that considered just the impact of the demolitions, not of the whole planned development. The PBA contends that a complete EIS is not possible due to uncertainties still about the full development plan.

In ruling against the Campaign, the judge referred several times to a New York State Office of Parks, Recreation, and Historic Preservation (known as SHPO) opinion that “the buildings have reached the end of their structural life and that rehabilitation or adaptive use…would be economically and programmatically unreasonable.” The SHPO report noted the irony, however, that the deteriorated condition of the buildings could be considered “in many ways a self imposed hardship created by the PBA as a result of not providing the buildings with a minimum level reasonable maintenance” during the decade and more they owned the buildings.

The decision does not mention that architect and chairman of the City of Buffalo Preservation Board Paul McDonnell subsequently inspected the Wilkeson mansion and other houses in the Busti row and declared them “structurally sound” and capable of being rehabilitated, information that was presented to the court by the Campaign.

An initial issue in the court case was whether the Campaign had standing—sufficient interest on legal grounds—to sue in the case. Judge McCarthy agreed that it did. The case then hung on two basic questions. Is the PBA subject to state environmental law (the State Environmental Quality Review Act, known as SEQRA)? And, if it is subject to SEQRA, did it perform a proper environmental assessment?

On the first question, the judge did not rule, but had foreboding words for the Campaign interests. “While I need not (and do not) definitively determine whether the PBA is subject to the requirements of SEQRA, I conclude that the Campaign has shown neither ‘a likelihood of success on the merits’ nor a ‘serious question going to the merits to make them a fair ground for trial’ on that issue,” he wrote.

On the second question—the hypothetical, if the PBA were subject to SEQRA, was the assessment proper—three substantive issues loomed. Whether the PBA’s rationale for the segmented assessment was sufficient, whether the segmented assessment was “no less protective” than a putative alternative (presumably not segmented) assessment, and whether the performance of the assessment comprised a “hard look” at all relevant considerations.

On the most prominently substantive of the issues, the “no less protective” question, the judge again sidestepped actual determination as to the question, focusing instead on the prior question, whether there was sufficient rationale for the segmented assessment. The court’s role is not to evaluate the assessment findings de novo, that is, anew, the judge affirmed, but the “standard of review is the reasonableness of the segmentation determination…Therefore, I need not determine whether a different decision as to segmentation would have been reasonable—I need only determine whether the PBA’s stated reasons for segmentation were adequate, and I conclude that they were.” The PBA’s principal argument for the segmented assessment was the supposed “many uncertainties” about the final project.

As to the Campaign’s contention that the PBA assessment “failed to address important concerns such as neighborhood character and offered conclusory statements…which do not meet the [SEQRA] requisite ‘hard look’ standard of review,” the judge wrote, “I disagree. The PBA extensively, and in great detail, addressed all relevant areas of environmental concern underlying its conclusion that there would be no significant adverse environmental impacts from the demolition.”

The decision does not mention neighborhood or community character, except to say that it is a SEQRA topic of interest and the PBA environmental assessment addressed the topic. But the PBA assessment said little or nothing germane regarding the removal from the neighborhood and community of a substantial portion of its territory and infrastructure and historic heritage. The decision does not mention public health, except to say that the PBA environmental assessment addressed it. But the PBA assessment said nothing about the high asthma rates among adults and especially children in the Peace Bridge area, determined through epidemiological studies to be due at least in part to emissions from Peace Bridge diesel truck traffic. Which the project will introduce deeper into the neighborhood and community. The plaza expansion project, that is, the whole project, not the current demolitions project that has been neatly disassociated—through the segmented environmental assessment and now by the court in countenancing the segmented assessment—from the whole project. But an essential component of the whole project, that wasn’t done for any other reason than the whole project. Wouldn’t have been done for any other reason.

Judge McCarthy’s decision—somewhat in the same way as the segmented assessment—focused on small matters in place of large, short-term activities—in the possibly very brief interim before realization of the plaza expansion and construction of the new Duty Free, the land the eight houses occupied is to be developed as greenspace—in place of long-term, less-important matters in place of more-important matters. What’s more important is the community. Its fate.

PBA chairman (and area liaison for Governor Andrew Cuomo) Sam Hoyt issued a brief statement following the demolitions. He said, “The Authority is pleased to be able resume its efforts to remove these blighted properties from the West Side neighborhood. This spring we will begin a landscaping initiative that will turn these properties from a dangerous eyesore to an attractive green space and buffer from the Plaza traffic.”

Campaign vice president Dan Sack addressed the “deteriorated condition” of the subject properties that occurred under PBA ownership. “How did the properties come to this?” he asked. “Through dereliction of duty by highly paid public officials. Not simply ignoring the laws, but deliberately flouting the laws. A little like the difference between loss of life through medical malpractice, and premeditated murder. The dilapidated condition of these properties was premeditated. It was not a mistake.”

Sack talked about how Hoyt, in his previous elected representative offices, “railed against state officials for their unresponsiveness to the wishes of citizens and local elected officials. And now that he’s a state authority, he’s unresponsive.”

Hoyt was asked to respond to this charge—how he reconciled the apparent change of heart—but did not respond.